On behalf of the defendant-appellant, the cause was
submitted on the briefs of Daniel R. Goggin II of Goggin & Goggin, LLC, Neenah.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Jacob J. Wittwer, assistant attorney general, and J.B. Van Hollen, attorney
general.

2014 WI App 21

COURT OF APPEALS

DECISION

DATED AND FILED

January 7, 2014

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2013AP1108-CR

Cir. Ct. No.2011CF453

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Jesse J. Delebreau,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Brown County:THOMAS
J. WALSH, Judge.Affirmed.

Before Hoover, P.J., Mangerson and Stark, JJ.

¶1HOOVER, P.J. Jesse Delebreau appeals a
judgment of conviction for one charge of party to the crime of delivering less
than three grams of heroin, second and subsequent offense, as a repeater.Delebreau argues the State violated his Sixth
Amendment right to counsel when it obtained two statements from him while he
was in custody and after he had appeared at arraignment with appointed
counsel.Accordingly, Delebreau argues
the trial court erroneously denied his motion to suppress the statements.We affirm.

BACKGROUND

¶2Delebreau was taken into custody on a probation hold on March
31, 2011.At that time, Delebreau was
the subject of an ongoing drug investigation, and deputy Roman Aronstein had
referred charges to the district attorney’s office.Sometime between April 7 and April 9,
Delebreau submitted a request to speak with someone from the local drug task
force.The State charged Delebreau
pursuant to Aronstein’s referral on April 14.That same day, Delebreau appeared in court represented by a public
defender.

¶3Deputy Aronstein responded to Delebreau’s request and met
with him in the Brown County jail on April 15.Delebreau received Miranda warnings, waived his rights,
and gave a recorded statement.[1]Aronstein returned on April 18 with a written
statement.Delebreau again waived his Miranda
rights, and he reviewed and signed the statement.

¶4Delebreau later moved to suppress his statements.The motion was denied, and Delebreau was
convicted following a trial at which the State utilized the statements.He now appeals.

DISCUSSION

¶5Delebreau argues the State violated his Sixth Amendment right
to counsel because, he asserts, a mere Miranda waiver is insufficient to
waive the right after a defendant has been charged and is represented by
counsel.Delebreau argues that under
these circumstances, the State must engage in the more expansive waiver inquiry
that is required when a defendant waives his right to counsel in court.We easily dispense with Delebreau’s specific
argument.However, to reach the issue,
we first must ford the muddy waters left by State v. Forbush, 2011 WI
25, 332 Wis. 2d 620, 796 N.W.2d 741 (Forbush II).This requires some background.

Such a bright-line rule means that law enforcement
officials may not even question a person such as Dagnall once charges are filed
and the person has an attorney. According
to the majority, it makes no difference that such an individual is given Miranda warnings, waives his or
her Fifth and Sixth Amendment rights, and agrees to talk to police officers
about the crime charged.

Id.,
¶69 (Crooks, J., dissenting).The Dagnall
decision relied extensively on Michigan
v. Jackson, 475 U.S.
625 (1986).Jackson, however, was
later overruled in Montejo v.
Louisiana, 556 U.S. 778 (2009).The
MontejoCourt held
that an accused’s representation by counsel at a preliminary court proceeding
does not render presumptively invalid any subsequent waiver of the right to
counsel at a police-initiated custodial interview. See id.at 792-97.

¶8 This is where our boots get muddy.In Forbush II, the seven justices
proffered four rationales; four justices proffered three distinct rationales
for affirming the circuit court, and three dissenters were agreed in their
separate rationale.We will briefly
summarize the decision.

¶9Justice Roggensack wrote the lead opinion, which no other
justice joined.Justice Roggensack
concluded that Montejo overruled Dagnall only with respect to
defendants who were appointed counsel; those who retained their own attorneys
were still entitled to the protection of the Dagnall rule.Forbush II, 332 Wis. 2d 620, ¶¶27,
34-35, 38-39, 51.

¶11Justice Prosser also concurred, completing the four-justice
majority.Justice Prosser concluded the
defendant was entitled to the protection of the Dagnall rule because his
statements were obtained long before Montejo was decided, when Dagnall
was still controlling law.Id.,
¶¶88, 92-93, 103 (“At the time of Forbush’s interrogation, the advent of the Montejo
ruling was barely a glimmer in Justice Scalia’s eye.”) (Prosser, J.,
concurring).Justice Prosser declined to
provide a rule for future cases, observing:

The principles stated above do not address the future. It is, however, important to note that the
Supreme Court invited the states to preserve existing law that police-initiated
questioning of accused persons charged with crimes and represented by counsel
is presumed invalid and will lead to exclusion of incriminating evidence.

….

Whether rights afforded by the Sixth Amendment will
require additional protection in this state remains to be determined.

¶15Finally, we reach Delebreau’s argument.Delebreau contends a mere Miranda
waiver is insufficient to waive the Sixth Amendment right to counsel after a
defendant has been charged and is represented by counsel.Delebreau observes that to waive the right in
court, a more demanding inquiry is required, citing Faretta v. California, 422 U.S. 806 (1975), and State
v. Imani,2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40.

¶16In Faretta, the Court held:

When an accused manages his [or her] own defense, he
[or she] relinquishes … many of the traditional benefits associated with the
right to counsel. For this reason, in
order to represent himself [or herself], the accused must “knowingly and
intelligently” forgo those relinquished benefits.[I]n order [to] competently and intelligently
… choose self-representation, he [or she] should be made aware of the dangers
and disadvantages of self-representation, so that the record will establish
that “he [or she] knows what he [or she] is doing and [the] choice is made with
eyes open.”

“So important is the right to attorney representation
in a criminal proceeding that nonwaiver is presumed.” …In [State v. Klessig, 211 Wis. 2d
194, 206, 564 N.W.2d 716 (1997),] this court mandated the circuit court’s use
of a colloquy in order to prove the
defendant’s valid waiver.…

Accordingly, to
prove a valid waiver of counsel, the circuit court must conduct a colloquy
designed to ensure the following:

[T]he
defendant: (1) made a deliberate choice to proceed without counsel, (2) was
aware of the difficulties and disadvantages of self-representation, (3) was
aware of the seriousness of the charge or charges against him, and (4) was
aware of the general range of penalties that could have been
imposed on him ....

[Id.]“If the circuit court fails to conduct such a
colloquy, a reviewing court may not find, based on the record, that there was a
valid waiver of counsel.” Id.

Imani, 326 Wis. 2d
179, ¶¶22-23 (citations omitted).

¶17Delebreau contends it is improper to apply different standards
to waive the Sixth Amendment right, depending only upon whether waiver occurs
before a court or an investigating officer.To begin with, Delebreau’s argument is poorly developed and lacks proper
pinpoint case citations.We may reject
it on that basis alone.State
v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994).Additionally, it is evident from the
quotations above that Faretta andImani/Klessig were
concerned with a different type of waiver: a complete waiver of the right to
counsel, as opposed to one limited in time and scope.It is therefore not unreasonable that
different standards would apply.More
importantly, however, Delebreau’s argument is foreclosed by Montejo.

¶18Montejo expressly held that a Miranda waiver can
sufficiently waive the Sixth Amendment right to counsel:

[W]hen a defendant is read his [or her] Miranda rights (which include
the right to have counsel present during interrogation) and agrees to waive
those rights, that typically does the trick, even though the Miranda rights purportedly have
their source in the Fifth Amendment:

As a general matter ... an accused who is admonished
with the warnings prescribed by this Court in Miranda ... has been sufficiently apprised of the nature of
his Sixth Amendment rights, and of the consequences of abandoning those rights,
so that his waiver on this basis will be considered a knowing and intelligent
one.

[Patterson v. Illinois,
487 U.S. 285, 296 (1988).]

The only question raised by this case, and the
only one addressed by the Jackson
rule, is whether courts must presume that such a waiver is invalid under
certain circumstances.

Montejo, 556 U.S. at
786-87.As noted previously, Montejo
overruled the Jackson rule, which presumed a waiver to be invalid when a
charged defendant was already represented. See id.at 792-97.Ultimately, the court held:

In sum, when the marginal benefits of the Jackson rule are weighed against
its substantial costs to the truth-seeking process and the criminal justice
system, we readily conclude that the rule does not “pay its way,” United States v. Leon, [468 U.S. 897, 907-08, n.6 (1984).]
Michigan
v. Jackson should be and now is overruled.

Id. at 797.

¶19In his reply brief, Delebreau states:

[T]he Montejo court does not explain why
the standard for waiver of counsel by a defendant (after a prosecution has
begun) would be subject to one standard if the waiver occurs before the trial
judge (i.e., the Farettastandard)
and a more lenient standard if the waiver occurs before an investigating
officer (as in Montejo).

That is all well and good.Nonetheless, we are in no position to
overrule the United States Supreme Court on a matter of federal constitutional
law.Delebreau does not dispute that Montejo
is controlling.Therefore, the trial
court properly denied Delebreau’s motion to exclude his statements.

[4] We
note that, at the time of this writing, Westlaw has a “yellow flag” indicator
assigned to State v. Dagnall, 2000 WI 82, ¶67, 236 Wis. 2d 339, 612
N.W.2d 680.This indicates “[s]ome
negative history but not overruled.”Forbush
I, 323 Wis. 2d 258, on the other hand, carries a “red flag,”
indicating it is “[n]o longer good for at least one point of law.”